LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115, 1990
LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1 - INTRODUCTORY Section 1. Short title 2. Commencement PART 2 - AMENDMENTS OF THE BANKRUPTCY ACT 1966 3. Principal Act 4. Interpretation 5. Delegation by Minister or Secretary 6. Registrars and Deputy Registrars 7. Duties etc. of trustee 8. The Common Investment Fund 9. Exercise of powers by certain officials 10. Debtor's petition 11. Debtor's petition against partnership 12. Debtor's petition by joint debtors who are not partners 13. Heading to Division 5 of Part IV 14. Repeal of section 69 15. Discovery of bankrupt's property etc. 16. Priority payments 17. Property divisible among creditors 18. Insertion of new section in Division 4 of Part VI: 129A. Eligible judges 19. Warrant for seizure of property connected with the bankrupt 20. Order relating to property of entity 21. Order relating to entity's net worth 22. Discharge of bankrupt by operation of law 23. Insertion of new section: 149A. Discharge of bankrupts in certain other cases 24. Insertion of new section in Division 1 of Part VIII: 154A. Official Receiver's report 25. Registration of persons as trustees 26. Insertion of new sections: 155A. Extension of term of registration 155B. Certificates of registration 27. Gazettal of registration etc. 28. Trustee's accounts and audit 29. Court may order trustee to make good loss caused by breach of duty 30. Controlling trustee's accounts 31. Court may order controlling trustee to make good loss caused by breach of duty 32. Control of controlling trustees by the court 33. Law of State or Territory may be proclaimed 34. Transcript of evidence etc. 35. Failure of person to attend before the Court etc. 36. Arrest of person failing to attend before the Court etc. 37. Protection in respect of reports 38. Substitution of new section: 314. Annual Report 39. Rules and regulations PART 3 - AMENDMENTS OF THE CIRCUIT LAYOUTS ACT 1989 40. Principal Act 41. Interpretation 42. References to all joint makers 43. Innocent commercial exploitation 44. Copying for private use 45. Copying for research or teaching purposes 46. Evaluation or analysis 47. Use for purposes of defence or security 48. Eligible foreign countries PART 4 - AMENDMENTS OF OTHER ACTS 49. Amendments of other Acts SCHEDULE AMENDMENTS OF OTHER ACTS LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - LONG TITLE
An Act to amend various Acts administered by the Attorney-General relating to law and justice and other matters, and for related purposes LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - PART 1 PART 1 - INTRODUCTORY
LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 1 Short title
(Assented to 21 December 1990) 1. This Act may be cited as the Law and Justice Legislation Amendment Act 1990. (Minister's second reading speech made in House of Representatives on 20 September 1990 Senate on 15 November 1990)
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LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 2 Commencement
2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Subject to subsection (3), the provisions of Part 2 commence on a day or days to be fixed by Proclamation. (3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - PART 2 PART 2 - AMENDMENTS OF THE BANKRUPTCY ACT 1966
LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 3 Principal Act
3. In this Part, "Principal Act" means the Bankruptcy Act 1966.*1* *1* No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973; No. 56, 1975; Nos. 37, 91 and 161, 1976; No. 111, 1977; No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; Nos. 10 and 63, 1984; Nos. 21 and 193, 1985; Nos. 154 and 168, 1986; Nos. 73 and 119, 1987; and Nos. 8, 38 and 99, 1988. LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 4 Interpretation
4. Section 5 of the Principal Act is amended: (a) by omitting from subsection (1) the definition of "public examination"; (b) by inserting in subsection (1) the following definition: " `eligible judge' means a judge of the Court declared by the Minister to be an eligible judge under subsection 129A (2);". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 5 Delegation by Minister or Secretary
5. Section 10 of the Principal Act is amended by omitting from subsection (7) the definition of "officer". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 6 Registrars and Deputy Registrars
6. Section 14 of the Principal Act is amended: (a) by inserting after subsection (1) the following subsection: "(1A) The Secretary may, in writing, direct an officer to exercise or perform, for the period specified in the direction or until the direction is revoked, all the powers, functions or duties of a Registrar under this Act, or such of those powers, functions or duties as are specified."; (b) by inserting in subsection (2A) "or by a person acting under a direction under subsection (1A)," after "Deputy Registrar,". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 7 Duties etc. of trustee
7. Section 19 of the Principal Act is amended: (a) by omitting paragraphs (1) (e) and (f); (b) by omitting subsections (1A) and (1B). LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 8 The Common Investment Fund
8. Section 20B of the Principal Act is amended by inserting in subsection (5) "at least" after "times". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 9 Exercise of powers by certain officials
9. Section 31A of the Principal Act is amended by omitting subsection (8). LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 10 Debtor's petition
10. Section 55 of the Principal Act is amended: (a) by omitting from subsection (3) "Where" and substituting "Subject to subsection (3A), where"; (b) by inserting after subsection (3) the following subsection: "(3A) Where, at the time when a debtor's petition is presented under this section, a creditor's petition is pending against the debtor (whether alone or jointly with another person) or against a partnership of which the debtor is a member, the Registrar must refer the debtor's petition to the Court for a direction to accept or reject it."; (c) by adding at the end of subsection (4) "or (3A)". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 11 Debtor's petition against partnership
11. Section 56 of the Principal Act is amended: (a) by omitting from subsection (4) "subsection (6)" and substituting "this section"; (b) by omitting from paragraph (4) (b) "or (6)" and substituting ", (6) or (7AA)"; (c) by inserting in paragraph (4) (c) "or (e)" after "paragraph (d)"; (d) by adding at the end of subsection (4) the following word and paragraph: "; or (e) where the petition is accepted by the Registrar under an order of the Court under paragraph (7AB) (b) - the petitioning partner, or each of the petitioning partners, to whom the petition, as amended under that order, applies becomes a bankrupt by virtue of the presentation of the petition.";
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(e) by inserting after subsection (7) the following subsections: "(7AA) Where, at the time when a debtor's petition is presented under this section, a creditor's petition is pending against the partnership, or against any of its members (whether alone or jointly with another person), the Registrar must refer the debtor's petition to the Court for a direction to accept or reject it. "(7AB) Upon a reference under subsection (7AA), the Court may direct the Registrar: (a) to accept the petition; or (b) to amend the petition by deleting from it the name of any partner against whom the creditor's petition is pending and to accept the petition, as so amended, under subsection (4); or (c) to reject the petition."; (f) by omitting from subsections (7A) and (8) "or (6)" and substituting ", (6) or (7AA)"; (g) by inserting in subsection (13) "or (7AB) (a)" after "(7) (a)". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 12 Debtor's petition by joint debtors who are not partners
12. Section 57 of the Principal Act is amended: (a) by omitting from subsection (3) "Where" and substituting "Subject to subsection (3A), where"; (b) by inserting after subsection (3) the following subsection: "(3A) Where, at the time when a debtor's petition is presented under this section, a creditor's petition is pending against any of the debtors (whether alone or jointly with another person), or against a partnership of which any of the debtors is a member, the Registrar must refer the debtor's petition to the Court for a direction to accept or reject it."; (c) by adding at the end of subsection (4) "or (3A)". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 13 Heading to Division 5 of Part IV
13. The heading to Division 5 of Part IV of the Principal Act is amended by omitting ", Public Examination". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 14 Repeal of section 69
14. (1) Section 69 of the Principal Act is repealed. (2) Despite the repeal of section 69 of the Principal Act, that section, as in force immediately before its repeal, continues to apply in relation to the examination of a person who became a bankrupt before that repeal. LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 15 Discovery of bankrupt's property etc.
15. (1) Section 81 of the Principal Act is amended by inserting after subsection (11) the following subsection: "(11AA) Subject to any contrary direction by the Court, the Registrar or the magistrate, the relevant person is not excused from answering a question merely because to do so might tend to incriminate the relevant person.". (2) Section 81 of the Principal Act, as in force immediately before the commencement of this section, continues to apply in relation to the examination of a person who, before that commencement, became a "relevant person" within the meaning of that section. LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 16 Priority payments
16. Section 109 of the Principal Act is amended by inserting in subsection (1) "section 50 of the Child Support (Registration and Collection) Act 1988 and" after "Subject to this Act and to". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 17 Property divisible among creditors
17. Section 116 of the Principal Act is amended by inserting after paragraph (2) (ma) the following paragraph: "(mb) amounts paid to the bankrupt under a scheme established and operated by a State or the Northern Territory in accordance with an agreement between the Commonwealth and that State or Territory whose execution, on behalf of the Commonwealth, was approved by the States and Northern Territory Grants (Rural Adjustment) Act 1988, or in accordance with that agreement as subsequently amended, being amounts paid by way of grant or loan as assistance for the purpose of rehabilitation or household support;". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 18
18. After section 129 of the Principal Act the following section is inserted in Division 4 of Part VI: Eligible judges "129A. (1) A judge of the Court may, by writing, consent to be declared by the Minister under subsection (2). "(2) The Minister may, by writing, declare a judge of the Court whose consent is in force under subsection (1) to be an eligible judge for the purposes of this Act. "(3) An eligible judge has, in relation to the power to issue a warrant under section 130, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 19 Warrant for seizure of property connected with the bankrupt
19. Section 130 of the Principal Act is amended: (a) by omitting from subsection (1) "a judge of the Court or to a
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magistrate" and substituting "an eligible judge"; (b) by omitting from subsection (2) "or magistrate"; (c) by omitting from subsection (3) "A judge or magistrate" and substituting "An eligible judge"; (d) by omitting from paragraphs 130 (3) (a), (b) and (c) "or magistrate" (wherever occurring); (e) by omitting from subsection (4) "a judge or magistrate" and substituting "an eligible judge". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 20 Order relating to property of entity
20. Section 139D of the Principal Act is amended by omitting from paragraph (1) (a) "date" and substituting "end". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 21 Order relating to entity's net worth
21. Section 139E of the Principal Act is amended by omitting from paragraph (1) (a) "date" and substituting "end". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 22 Discharge of bankrupt by operation of law
22. Section 149 of the Principal Act is amended: (a) by omitting paragraphs (3) (a) and (b); (b) by omitting from paragraph (14) (c) "(a), (b) or". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 23
23. After section 149 of the Principal Act the following section is inserted: Discharge of bankrupts in certain other cases "149A. Where, immediately before the commencement of this section, a person was an undischarged bankrupt solely because paragraph 149 (3) (a) or (b) of this Act, as then in force, applied to the person, the person is, by force of this section, discharged from bankruptcy on that commencement.". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 24
24. After section 154 of the Principal Act the following section is inserted in Division 1 of Part VIII: Official Receiver's report "154A. (1) A natural person who intends to apply for registration under section 155 may apply to the Official Receiver for the District in which the application under section 155 is to be made for a report under this section. "(2) An application under this section must be made in writing as prescribed and must be accompanied by the prescribed fee. "(3) On receipt of an application, the Official Receiver must, after causing the applicant to be interviewed as prescribed and making such inquiries as the Official Receiver thinks necessary, prepare and give the applicant a written report stating the Official Receiver's opinion of the applicant's ability to perform the duties of, and fitness to be registered as, a trustee under this Act. "(4) A report must contain a summary of the results of the interview and any inquiries made by the Official Receiver, and may set out any other matters that the Official Receiver thinks the Court should take into account in considering an application by the applicant under section 155.". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 25 Registration of persons as trustees
25. (1) Section 155 of the Principal Act is amended: (a) by omitting subsection (3) and substituting the following subsection: "(3) An application must: (a) be made in writing as prescribed; and (b) contain such information as is prescribed; and (c) be accompanied by the prescribed fee and an Official Receiver's report under section 154A."; (b) by inserting in paragraph (3A) (d) ", having had regard to the report mentioned in paragraph (3) (c)," after "the Court"; (c) by inserting after subsection (3B) the following subsection: "(3C) Subject to this Act, where a person is registered under this section, the registration remains in force for 3 years from the day on which the applicant enters into the bond mentioned in subsection (3A)."; (d) by omitting subsection (5); (e) by omitting from subsection (5B) "suspend for a specified period or"; (f) by omitting from subsection (5C) "suspend for a specified period or"; (g) by inserting after subsection (5D) the following subsections: "(5E) A person who is registered under this section may notify the Registrar in writing that the person wishes to stop being a registered trustee on the day specified in the notice, being a day that is not later than the last day of the current term of the person's registration. "(5F) Where a person gives a notice under subsection (5E), the person stops being a registered trustee on the day specified in the notice.". (2) A person who, immediately before the commencement of this section, was registered under section 155 of the Principal Act, as then in force, may, within 3 months after that commencement, notify the Registrar that the person wishes to continue to be a registered trustee within the meaning of the Principal Act.
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(3) A person who notifies the Registrar under subsection (2) is taken to have been registered under section 155 of the Principal Act, as amended by this Act, for a term of 3 years starting on the day on which the notice is given to the Registrar. (4) A person mentioned in subsection (2) who does not notify the Registrar under that subsection stops being a registered trustee at the end of the period of 3 months mentioned in that subsection. LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 26
26. After section 155 of the Principal Act the following sections are inserted: Extension of term of registration "155A. (1) A person who is registered under section 155 may, within 6 months before the end of the current term of the registration, apply to the Registrar for an extension of the term. "(2) An application must be made in writing as prescribed and must be accompanied by the prescribed fee. "(3) The Registrar must notify the Inspector-General and each Official Receiver of an application within 2 days after the Registrar receives it. "(4) The Inspector-General or an Official Receiver may, within 7 days after receipt of a notice under subsection (3), object to the application by notice in writing given to the Registrar. "(5) If the Inspector-General or an Official Receiver does not object to an application, the Registrar must grant it, but if there is such an objection, the Registrar must refer it to the Court for a direction to grant or refuse it. "(6) The Registrar must comply with a direction of the Court on a reference under subsection (5). "(7) Where the Registrar grants an application, the term of the relevant registration is extended for a period of 3 years starting immediately after the end of the current term of the registration. "(8) Where: (a) a person applies for an extension of the current term of a registration; and (b) the term would, apart from this subsection, end on a day before the application is finally determined; the current term of the registration continues until the day on which the application is finally determined. Certificates of registration "155B. (1) Where a person is registered under section 155, the Registrar must cause a certificate of registration to be given to the person. "(2) Where a person stops being a registered trustee, the person must, as soon as practicable, forward his or her certificate of registration to the Registrar. "(3) A person who, without reasonable excuse, does not comply with subsection (2) is guilty of an offence punishable, on conviction, by a fine not exceeding $100.". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 27 Gazettal of registration etc.
27. Section 156 of the Principal Act is amended by omitting "the registration of a person under section 155 is cancelled or suspended or his name is removed from the register" and substituting ", for any reason, a person stops being a registered trustee". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 28 Trustee's accounts and audit
28. Section 175 of the Principal Act is amended: (a) by omitting subsections (2), (3) and (4) and substituting the following subsection: "(2) The Inspector-General or an Official Receiver may, on his or her own motion or at the request of a creditor or the bankrupt, audit an account furnished to the Registrar under subsection (1), or cause it to be audited by an appropriate person."; (b) by omitting from subsection (6) ", not being an audit carried out by the Auditor-General,". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 29 Court may order trustee to make good loss caused by breach of duty
29. Section 176 of the Principal Act is amended by omitting from paragraph (2) (b) "suspending for a specified period, or cancelling," and substituting "cancelling". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 30 Controlling trustee's accounts
30. Section 211 of the Principal Act is amended: (a) by omitting subsections (2), (3) and (4) and substituting the following subsection: "(2) The Inspector-General or an Official Receiver may, on his or her own motion or at the request of a creditor or the debtor, audit an account furnished to the Registrar under subsection (1), or cause it to be audited by an appropriate person."; (b) by omitting from subsection (5A) ", not being an audit carried out by the Auditor-General,". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 31
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Court may order controlling trustee to make good loss caused by breach of duty
31. Section 212 of the Principal Act is amended by omitting from paragraph (2) (b) "suspending for a specified period, or cancelling," and substituting "cancelling". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 32 Control of controlling trustees by the Court
32. Section 212B of the Principal Act is amended by inserting in subsections (1) and (2) ", the Inspector-General" after "Registrar". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 33 Law of State or Territory may be proclaimed
33. Section 253B of the Principal Act is amended: (a) by adding at the end of paragraphs (a) and (b) "or"; (b) by inserting after paragraph (d) the following word and paragraph: "; or (e) gives effect to an agreement between the Commonwealth and a State or the Northern Territory whose execution, on behalf of the Commonwealth, was approved by the States and Northern Territory Grants (Rural Adjustment) Act 1988, or that agreement as subsequently amended;". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 34 Transcript of evidence etc.
34. Section 255 of the Principal Act is amended: (a) by omitting subsections (1) to (4) (inclusive); (b) by inserting in subsection (5) "recorded" after "transcript of any"; (c) by omitting from subsection (5) "taken down or recorded in accordance with this section" and substituting "given before or by the Court, the Registrar or a magistrate". LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1990 No. 115 of 1990 - SECT 35 Failure of person to attend before the Court etc.
35. (1) Section 264A of the Principal Act is amended by omitting subsection (1) and substituting the following subsections: "(1) This section applies to a person who: (a) is served, whether before or after the commencement of this subsection, with a summons under this Act to attend for examination under a provision of this Act (other than section 81), or to appear as a witness before the Court, and is tendered a reasonable sum for expenses; or (b) is not a relevant person within the meaning of section 81 but is served, whether before or after the commencement of this section, with a summons to attend for examination under that section and is tendered a reasonable sum for expenses; or (c) is a relevant person within the meaning of section 81 and is served, on or after the commencement of this section, with a summons to attend for examination under that section. "(1A) A person to whom this section applies must not, after the commencement of this section, without reasonable excuse: (a) fail to attend as required by the summons served on the person; or